2k is big for me atm, apparently I have missed 3 yrs payments of 75 on my lease but now they want 675 including costs to be paid within 10 days and I havent received any demands - just someone elses, I have complained to the leaseholder and their solicitors - I even have copies of the demands for someone elses property on pdf. mortgage is 305 pm I owe 1125 this week has not been good for us. in 2011 they got a default CCJ against us but I have copies of demands for another property from before then but I didnt know then what I do now, it just seems like everything is coming at once and I am at my wits end now - nowhere to go

As things stand now I am a broken man, I have this on Monday, Tuesday a letter saying I am in Breach of my lease on my property so if I dont pay in 10 days they will take me to court and today my mortgage provider has started repossession proceeding against me - they say things come in 3's I'm on a downward spiral :o(

Yes, I feel abused :o(

Counsell was given 250 instead of the 350 - claim was for 1163 + 899 costs. Yes Counsell did want a friendly chat beforehand but decided against it when I told him I would be objecting to the statement served on the saturday. Hey ho

Today was not a good day. The statement the claimants served last minute got allowed, my defence was struck out and I have a judgement. I got the impression the DJ had already made their mind up before I opened my mouth. Went through all the points above and just felt like I was ignored. When I mentioned the demand/termination the Judge jsut said thats another point though isnt it, I mentioned it had been brought up by the claimants in the statement they had just allowed to be told that was used to show that an agreement wasnt needed. Judgement made they went for the Forthwith award, DJ said no thank god. The DJ asked did I despute the account - I replied no however I do dispute the people collecting the debt and how they have acted throughout - just got the that doesnt stand up in law reply. The Counsel did turn up however the DJ lowered how much he was being paid today. Still got to find 2k from somewhere now though. I wouldnt let this put anyone off defending these claims - it just wasnt my day....... unfortunately

Thanks Andy it really is much appreciated Regards andmf

Thanks for the above Andy much appreciated, I dont need all this atm my brother got taken in today for an operation on his back - dont know whether he will walk again sort of puts things into perspective

Not a great deal mentioned n their particulars lol The Claimant claims payment of the overdue balance due from the Defendant under a contract between the Defendant and Lloyds TSB bank PLC dated on or about 28/02/1986 and assigned to the claimant on 31/10/2012 in the sum of £1136.82 Particulars = A/C number

I used your modded version of the 31.14 Post 27 with bits deleted that werent mentioned

Hi Andy Thanks for getting back to me Yes I used a 77/78 request and on the 31.14 I asked for a copy of the agreement with T&C, and copies of the letters of assignment mentioned in their POC I got the letters of assignment and statements (not mentioned in their POC) but no agreement

Am I going to get battered on monday?

OK I've had another letter from Restons dated yesterday. We refer to the above matter and enclose by way of service Witness Statement which will relied upon at the forthcoming hearing. (I think this has been served too late!!) Its from Jeremy Boucher 1. I confirm I am duly authorised by the claimant to make this witness statement on its behalf which I do so from matters which are within my own knowledge and are true and from information contained contained on my firms case management system. I confirm I have read the witness statement signed by my colleague on 6th Feb. In this witness statement I respond to a witness statement signed by the defendant and dated 21 Mar 2014. 2. At para 3 of the defendants WS it is stated “the absence of a signed facility agreement… gives me cause to believe the claimant has no real prospect of succeeding at trial due to the lack of this evidence”. In my respectful submission this statement is incorrect as there is no obligation on the Claimant to provide a copy of a signed agreement. I am aware of the cases referred to in exhibit 3 to the defendants witness statement and they do not support (in my submission) the proposition that a claimant is required to provide a copy of a signed facility agreement. A creditor is entitled to rely on Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 which provides there may be omitted from any copy of an agreement… “any signature box, signature or date of signature”. 3. In any event as the enclosures to Miss XXX WS confirms , the account which is the subject of this action was a current account facility granted by Lloyds Bank where the defendant exceeded his overdraft limit. 4. I do not accept the defendants letter dated 28 Feb 2013 constitutes a properly constituted request made pursuant to Section 77/78 of the consumer credit act 1974. In addition to the points made above the account had already been terminated prior to the commencement of proceedings. The notice of assignment served by the claimant (a copy which is exhibited in Miss XXX WS) requires payment of the full outstanding balance. Exhibited to this WS at JSB1 is a copy of my firms letter dated 17 Jan 2013 which explains the defendant was under an obligation to pay the full outstanding balance immediately. In my respectful submission the legal position is that once an account has been terminated a creditor is not under a legal obligation under the act to respond to a Section 78 request. For those reasons I do not accept the letter dated 28 Feb 2013 affords the defendant a defence to this claim. 5. I also do not accept that the defendants letter dated 01 Mar 2013 either constitutes a properly constituted request pursuant to CPR 31.14 or affords the defendant a defence to this claim. The defendant has not explained how the documents are “mentioned” in the claim form. 6. In summary, this is a claim for a modest amount of money under a common place style of overdraft agreements. The claimant has exhibited statements of account which for the relevant years have shown movements on the facility. In my respectful submission none of the points raised by the defendant afford him a defence to this claim and I seek an order in the terms of the application. I'm in court on Monday and welcome any comments on this statement, Para 6 tickles me a bit cos they sent me a costs summary the other day which in effect doubles the claim. Am I right in thinking that this statement is full of the preverbial or am I missing something altogther? Comments please

I've also had another thought - how can I owe anything when I havent actually received it. from the internet statements they have provided the entire balance they are claiming is made up from unauthorised o/d charges and returned dd fees

lol just been looking through Restons court docs, the 2 letters they have submitted as evidence with admission forms attached - both admission forms (N9A's) show the claimant as being Marlin I Europe Ltd - The claim is being made against me by Marlin II Europe Ltd - so even if I wanted to admit, I couldnt because its for a different company. Starting to look forward to Monday now Just hope I get a patient Judge

So this is the norm for them, should I take the letter to court on monday to show the Judge?

Got a letter from Restons today - Costs for the hearing - over £1000, seems a bit OTT to me - apparently they have appointed Counsel for the hearing - its only a strike out defence hearing WTF??

Damn I missed that one - it is signed by restons ltd - may be useful if I make it to trial :S

OOer forgot to ask do I need to send a copy of my statement to the court too?

Thanks for that Andy - your HO means a lot in my household I can tell you, you have helped me from the beginning of this dilema and for that I cannot thank you enough. Going to get it tidied up now and all the bits copied tomorrow so I can get it to Restons for Monday, SD signed for of course. Once again Many Thanks - until the next stage

Another attempt at the witness statement WITNESS STATEMENT I, xxxx xxxx, make this statement in response to the statement of xxxxxx, of Restons Solicitors, dated 6th February 2014. 2. To date no Facility agreement or Terms and Conditions have been shown to the defendant as mentioned in the claimants Particulars of Claim, despite the defendant requesting copies from both the claimant via a CCA request dated 28th February 2013 which was sent by recorded mail and signed for by the claimant on 2nd March 2013 according to the Royal Mail Website (Attached at XX1). Further to this I sent a CPR 31.14 request to the Claimants Solicitors (Attached at XX2) to which I have had no response whatsoever and I feel this has shown the Claimant and their Solicitors, to have acted unreasonably and have hindered me giving a proper defence to this claim, and they themselves are abusing the court process. 3. I believe that in the absence of a signed facility agreement, and the claimants failure to provide this agreement as relied upon in their particulars of claim, gives me cause to believe the Claimant has no real prospect of succeeding at trial due to the lack of this evidence. Please see attached case studies in regards to agreements (XX3). 4. In response to the Claimants Witness statement the Claimants representatives state that the claim is for a Bank Account and in doing so infer that it doesn’t come under any form of agreement rules however, I believe that this account does come under the CCA as per the Director of Fair Tradings Determination under Section 74(1)(b) and it should not be exempt from Section V. The claimants have delayed these proceedings at every available opportunity, they have breached CPR 31.14 and in doing this I believe their claim has no merit. 5. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed. Statement of Truth I believe that the facts stated in this Witness Statement are True

OK jst got back in, and Restons Court pack was waiting for me - exactly the same as I got from my local court only 5 days later!! Its a good job my local court are on the ball or I would of had 1 day to get my statement ready. On from last night so if my account was overdrawn for more than 3 months then the determination comes into play? am I reading that right? or if my overdraft was agreed by the bank on an ongoing basis to be reviewed on a set date the determination comes into play? did I read that bit right, I'm getting dizzy.

OK I have done a bit more reading - on their POC they state the debt arises from a contract between me and LLoyds, however on their witness statement it is a current account facility, does this then fall under CCA 1974? in which case they must provide an agrrement to succeed with their claim? the thread quoted above is very good, do you think it would be prudent of me to attach an amended defence along the same lines to my witness statement thus giving me more leverage to progress to trial? Obviously its a different set of circumstances however I feel that both are running pretty parallel.

2nd Version, hope this is better - I'm not very good at these I dont think Statement of Mr xxxx xxxx Statement dated XXth March 2014 Claim No. xxxxxx IN THE xxxx County Court BETWEEN: Marlin II Europe Limited Claimant And Mr xxx xxx Defendant WITNESS STATEMENT I, xxxx xxxx, make this statement in response to the statement of xxxxxx, of Restons Solicitors, dated 6th February 2014. 2. To date no Facility agreement or Terms and Conditions have been shown to the defendant as mentioned in the claimants Particulars of Claim, despite the defendant requesting copies from both the claimant via a CCA request dated 28th February 2013 which was sent by recorded mail and signed for by the claimant on 2nd March 2013 according to the Royal Mail Website (Attached at XX1). Further to this I sent a CPR 31.14 request to the Claimants Solicitors (Attached at XX2) to which I have had no response whatsoever and I feel this has shown the Claimant and their Solicitors, to have acted unreasonably and have hindered me giving a proper defence to this claim, and they themselves are abusing the court process. 3. I believe that in the absence of a signed facility agreement, the claim cannot continue and the claimants in this action are abusing the court process by trying to get people to pay monies which they are not entitled to by threatening further costs if the defendant doesn’t admit to the claim. Please see attached case study in regards to agreements (XX3). 4. The claimants have delayed these proceedings at every available opportunity, and in doing this I believe their claim has no merit. I believe this claim is grossly inflated and I put the claimants to strict proof to explain their charges and fees set out on the statements they have previously submitted to support this application. Please see attached case study with regards to penalty charges being included in a notice of assignment (XX4). I believe that the facts stated in this Witness Statement are True. XX1 = CCA letter to Marlin XX2= CPR 31.4 Letter to Restons XX3 = As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that: 
‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’ SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40 THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT XX4= The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956]. Any pointers in the right direction - is this better than the last one - or where I should be going would be much welcomed

I need some help with this now guys, I need to get the WS completed before tomorrow night so I can get it copied on Thurs and sent on Friday so I meet the deadline Regards andmf

Can I use any of the below to back up my statement? The Defendant notes that Under CPR 16 part 7.3 “where a claim is based upon a written agreement; (1) a copy of the contract or documents constituting the agreement should be attached or served with the particulars of claim”, no such document or contract was attached to the Particulars of claim served by the claimant. s127(3) of the CCA1974 provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order. (N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation…… The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6)) Citation 1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007. Interpretation 2. In this Order “the 2006 Act” means the Consumer Credit Act 2006. Commencement 3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007. (2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007. Transitional Provisions 4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont) 5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in— a) sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act; (b) section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and © section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act, in relation to agreements made before 6 April 2007) REFERENCE TO CASE LAW As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that: 
‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’ SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40 THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT The law states that without a prescribed agreement the courts may not enforce under 127(3) and 1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:- “Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.” 2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:- “The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;” I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29 ” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.” If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued. no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the demand. It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope, dating and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974 Section 87(1) of the CCA 1974 says:

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum....

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is. 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119 The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956]. 2.10 Examples of unfair practices are as follows: a. claiming collection costs from a debtor in the absence of express contractual or other legal provision b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision c. not giving an indication in credit agreements of the amount of any charges payable on default d. applying unreasonable charges, for example, charges not based on actual and necessary costs e. applying charges which are disproportionate to the main debt.